Lombardi's Response to My Post on Listserves
Lombardi raises one issue to which I gave short shrift: that lawyers should not blindly rely on advice offered on listserves without conducting their own independent verification. However, those lawyers who willingly accept advice from other lawyers (e.g., "The statute says X") without checking the source are the same lawyers who, in the absense of the listserve, probably wouldn't even bother to research a question to begin with (For example, I know one lawyer who will file a motion without any caselaw and then let his opponent "do the work for him" by researching and citing applicable cases in the response. Let's just say that this lawyer's clients wouldn't be any worse off if this lawyer relied on unverified advice from a listserve).
Lombardi also mentions the problem of too much listserve garbage that he claims don't interest experienced attorneys - the endless stream of "me too's" and political discussion and posts by lawyers in way over their heads. However, information overload isn't unique to listserves; it's a product of the Internet era where we're regularly inundated with a constant stream of information from listserves, blogs, news sources and RSS feeds. As lawyers, we need to find ways to manage that information, to cull the wheat from the chaff in an efficient and proactive manner. Yes, many listserves do benefit from moderators, but we lawyers must take responsibility for moderating information for ourselves. This means liberal use of mail filters, search tools and most of all, the "delete key."
I Hope That This Hillman Article on Client Choice Isn't Intended to Create More Hurdles for Shinglers-to-Be
Under legal ethics principles, a clients' right to the attorney of their choosing trumps even the economic interest of the firm representing the client. For that reason, firms cannot force lawyers to enter into non-compete agreements or impose onerous restrictions that would prevent a client from following a departing attorney to another firm or to his own practice. Were it not for the principle of client choice, the increasing trend of "biglaw to yourlaw attorneys" (that I've described in various posts )here would stop dead in its tracks since most big firm attorneys are generally manage to take a few clients with them, who provide a source of revenue as they grow their new firm (in fact, many large firm attorneys find that the clients who migrate with them provide them with even more work, because the attorney can charge more affordable rates as a solo). And attorneys would be forever married to a single law firm, even if another professional opportunity presented itself that was more beneficial not just for the attorney, but for his client as well.
But now comes this seemingly benign article by Professor Robert W. Hillman, entitledClient Choice, Contractual Restraints and the Market for Legal Servicesthat lays the groundwork for upending the existing scheme. Hillman writes that client choice doesn't justify the present bar to non-compete agreements because client choice is only a myth. Hillman writes that as a practical matter, the only clients who have choice are sophisticated large firm clients, while clients of lesser means may not be able to afford lawyers at all, or are forced to settle for those who charge the cheapest rates. Because client choice is a myth, Hillman suggests that there's no basis more basis in law than in any other profession (such as medicine or accounting) for prohibiting non-competes or other restraints on lawyers' ability to take clients with them when leaving a firm.
Though I don't know for sure what motivated Hillman's article at this particular time, I'm wondering if it has anything to do with the ongoing conversation about "publicly traded law firms." As Larry Ribstein writes in this informative piece, one potential impediment to a publicly traded firm is that most potential investors won't want to buy a firm "whose assets can walk." But Ribstein then suggests that if publicly traded firms turn out to be economically viable, then lawyers may decide to change the rules that prohibit non-competes. And in that regard, Hillman's article helps to clear the path for eliminating the prohibition on non-competes by arguing that these restrictions don't serve any purpose and thus, don't distinguish the legal profession from other professions like medicine or accounting where non-competes are pervasive.
On its face, Hillman's article seems benign, just a scholarly discussion of the historic origins of the principle of unfettered client choice in the legal profession. But if followed to its logical conclusion, Hillman's article will remove any incentive for lawyers to cultivate trusted relationships with clients (since those bonds can be severed if the lawyer leaves the firm) at a time when clients are already deeply disatisfied with the lack of personalized service provided by large firms. Shouldn't our code of legal ethics promote the interest of clients, not law firms?
The Rich Choose Solo and Small Firm Lawyers
Worth Magazine just published a list of the top hundred lawyers who serve some of the nation's wealthiest individuals, with net worths ranging from $2 million to $200 million. (H/T ABA Journal News). The wealth of these lawyers' clients ranges from In particular, the editors sought out "lawyers with great tact, discretion and stellar interpersonal skills, enabling them to explain a client’s options in the face of incredibly complicated legal and psychosocial issues.
Solo and small firm lawyers comprise at least half of the list. Of course, give the characteristics that Worth was looking for, does that really come as a surprise?
Blogging for the Long Haul
My buddy Kevin O'Keefe is raising a toast to America's blogging lawyers and their "dedication to learn, exchange information, and market themselves in an upbeat and professional way." But there's another part of Kevin's post that caught my eye - the line where he adds that "Blogging lawyers, age 35, are going to be blogging for the next 25 years."
I started my blog when I was 38 and I'm fast approaching the five year blogging mark. While I can't imagine abandoning blogging, I also can't fathom the thought of blogging twenty more years, churning out content two or three times a week. Would I find enough new inspiration to keep my writing fresh? Or turn into some kind of blogging-egomaniac, forever citing my own self-created body of work, or harking back to the "good old days" when bloggers had to walk ten miles through knee deep snow to post...(oops, that's the speech I give my daughters when they balk about the three block walk home from the bus stop). And worst of all, will changes in technology render my old posts inaccessible?
Right now, the blogging phenomenon lives so vibrantly in the present that it's hard to contemplate the future. And like everything else with the Internet, some next big thing will come along in another ten years that will displace blogging entirely. The challenge that I see for lawyers isn't so much committing to blogging for the long haul, but having the ability to embrace blogging for now, while keeping our eyes and mind open for the next big thing on the horizon.
Where do you think blogging is going? And will you be blogging 25 years from now? Post your thoughts below or at your blog.
Hey, McKee Nelson Associates - There'll Never Be A Better Opportunity Than Now to Start Your Own Law Firm
Thanks to a lemon of a credit market, associates at McKee Nelsonhave the opportunity to make a huge vat of life-changing lemonade. Above the Law's David Lat is reporting here that NY/DC based McKee Nelson, in an effort to avoid economically-induced, forced associate layoffs, is offering associates two options: (1) a full bonus, plus four months pay to anyone willing to leave the firm voluntarily or (2) a full bonus plus a year's sabbatical at 40 percent of the $160,000 salary. Option 2 carries two caveats; first, the firm cannot guarantee employment at the end of the year and second, the firm wants associates to use the sabbatical to "make the world a better place."
Lat suggests that associates use the time to fulfill their dreams of finishing a novel, or studying painting. But I've got a better idea: what about starting your own law firm and becoming the lawyer you always wanted to be?
With a $25,000 bonus and a $60,000 salary, MN associates who decide to go solo would have the luxury of building a practice the right way, without ever having to spend a minute specializing in "threshhold law" (i.e., taking any client who crosses the thresshold). They could develop an interesting specialty, devote time to starting a blog, handle court appointed cases to get courtroom experience, devote time to building the kinds of relationships that generate referrals and invest in the infrastructure, such as adequate malpractice insurance, computerized legal research and quality laptops and mobile work equipment (notice that I don't mention Class A office space here, because to me, it's not integral) that would help insure success. And they'd have the time and resources to spend on CLEs and marketing classes to help ensure success.
Would starting a law firm qualify for McKee Nelson's requirement of "making the world a better place?" Absolutely. Because these new solos might find the kind of autonomy and happiness that may have eluded them at a larger firm, plus, they'd set an example for other disatisfied lawyers to follow. And liberated from the overhead of requirements of large firms, these new solos could offer top service at lower rates to more clients, thus improving the quality of legal representation and expanding access to law. Finally, if...and when these MN solos decided to return to their former firm (assuming it's still around), they could apply their newly found marketing skills and hands on experience that would fuel the firm's growth. In fact, maybe this concept of funding associates to start their own firms and gain experience on their own time may serve as a potential business model for biglaw.
To my fellow solo bloggers, I offer this fantasy question: how would you advise a lawyer with a $25,000 bonus and $60k income to spend that money if they decided to start a firm? If you post a response at your site, please send the link in the comments below. MN associates, check back here or drop me an email at email@example.com you think that starting a firm may be an option for you.
Another Nader Anise Free Teleseminar
Nader Anise has just put out a "save the date" for his upcoming, annual "Lawyer Appreciation" free teleseminar. The seminar is scheduled for Thursday, Nov. 15 from 12:30 pm to around 2:00 pm EASTERN, with 800 lawyers expected to call in. This year's topic is "Making it BIG as a high-profile, celebrity lawyer," and there's a surprise guest.
I've called into Nader's previous teleseminars and they're excellent, for two reasons. First, even though the calls are free, they offer valuable, stand alone information. They are not "teasers," intended to force you to purchase Nader's materials, though I imagine that many lawyers do purchase it after this informative phone call. Second, the advice that Nader has offered on his past calls is not expensive to implement. Many of his suggestions did not involve any outlay of cash, only time. So if you're on a shoestring budget, you'll want to listen in on these tips.
The final details and call in numbers haven't been announced - I'll either post them here, or visit NaderAnise.com.
Don't Just Step Off the Partnership Track; Bypass It Entirely
I'm not sure whether any of you remember the TV show LA Law . Sometime in the second or third season, the firm's young associate, Abby, was told that she wasn't partnership material so she left to start her own criminal defense practice. A year or so later, Abby had established her reputation as a trial lawyer, and the firm that had once spurned her lured her back (though I don't remember if she became a partner or merely collected a higher salary). Though I watched those episodes before I ever started my own practice, the concept of leaving a firm to build your skills and credentials and then return later, on your own terms struck me as eminently smart.
Back here, I posted on how Supreme Court solo specialist Tom Goldstein brought his practice to biglaw firm Akin Gump - after he'd been on his own for five years and argued more than a dozen cases at the Court. And today, I saw this Press Release about Ely Goldin, a former solo specializing in issues related to the business needs of the Russian immigrant community, who was named partner at Fox Rothschild.
When you start a firm, you may dream of staying small...or building your own empire. But solo practice isn't just an end in itself, it can also be viewed as a phase of your career during which you build skills and increase your value. Making partner after toiling as an associate at a large firm is always a risk. Is it really any more risky to try to make partner after building your own practice?
Why Are So Few Women Lawyers Solo?
Since women lawyers pull their own weight in the genre of solo and small firm blogs (along with me, there are my colleagues and friends, Susan Cartier Liebel and Inspired Solo's Sheryl Schelin, I was surprised to learn that Few Women Choose to Practice Solo (NLJ 9/13/07). A recent study released by NALP revealed that women comprise only 34 percent of solo practitioners, while 77 percent of lawyers working for public interest groups are women.
Why don't more women choose solo practice? After all, you'd think that women looking for work life balance would find solo practice appealing, because when you work for yourself, you gain control over the hours you work and the hours you handle. My own belief is that women themselves are driving lawyers away from solo practice. As I posted here previously, when women demand equality in the profession, they're usually referring to equality at big law firms. Women who start and head their own practices, no matter how prominent, simply don't count. As a result, younger women don't view solo practice as an option.
Are Women Fighting for Equality At Biglaw Behind the Times?
I was looking through some of these relatively new books on getting ahead in business and entrepreneurship that Marci Alboher reviewed in her Careers Column for the NY Times. (If you recall, I reviewed Marci's book, One Person, Multiple Careers back here in February). What struck me about these three books - Anti 9 to 5 Guide: Practical Advice for Women Who Think Outside the Cube; The Parentpreneur Edge: What Parenting Teaches About Building A Successful Business ; and Grindhopping: Building A Rewarding Career Without Paying Your Dues - is that not only do they each have their own website (probably di rigeur for most new titles but they are all authored by women who are pushing the concept of entrepreneurship and jumping off the traditional career ladder as a way for women to get ahead. Contrast that "go get 'em," risk-taking mentality with the initiatives within the legal profession for advancement by women at a law firm - like begging for flex time or waiting for "the firm" to come up with ways to help women network.
All of this made me wonder whether women seeking equality at law firms are behind the times instead of on the cutting edge. Because if these books are any reflection of what's happening in the business context, it seems that in order for women to succeed, they need to break the rules, not follow them and make their own rules instead of forcing others to change theirs.
For a previous, related post on a similar topic, see And where were the women solos?
The Other Side of Solo Practice
It's difficult to fully respond to an article like this one,
The Snark: Flying solothat discusses the drawbacks of solo practice because I can't decide whether the author is trying to be funny or is truly pathetic, and pathetically uninformed.
Basically, the article is intended to discourage unhappy associates from making the mistake of starting their own firms. Fair enough. Leaping from biglaw to yourlaw is a major step, one that shouldn't be taken lightly. In fact, if an associate left a large firm to open his own shop and didn't feel apprehensive, I'd be worried that he hand'nt given much thought to the move.
But this article goes beyond highlighting some of the drawbacks of solo practice: it screams about them, loud and clear. Unfortunately, the article is rife with the sorts of stereotypes that I'd assumed that my blog and at least a dozen other solo practice related blogs had put to rest. Consider a few:
Tech Support From the article: But when you go to log in to your new laptop, and it can�t detect your wireless Internet because your router is improperly configured, you can�t just dial the IT Hotline folks, who will solve your problem in five minutes or rush up to your office with a new computer.
The truth: Hello?! Ever hear of outsourcing? Many solos outsource tech support functions. And computers are so inexpensive, that they often have two machines, so that if one goes down, they can keep working.
Client Developemnt From the article: "But without partners to delegate document reviews, memos and revisions to contracts, you�re on your own to find clients and convince them that your skills are worth your freshly discounted $175 rate: Big Firm Lawyer, Small Firm Price!� But convincing people you�re worth that rate is harder when all knowledge and networking and rainmaking must come from you alone. No more team for you."
The truth: When did the firm team ever try to sell anyone's experience but that of the senior partner?
Getting Information From the article: "If a client called with some random question, one little firmwide email later you had the answer." Apparently, this author has never heard of Solosezwhere a network of 2000 solos can find a response just as quickly as a colleague at biglaw - and they won't bill you for it!
Practice AreasFrom the article: So when your old Big Firm clients don�t follow you and hire you to draft their employee handbooks anymore�your particular sub-specialty in the Big Firm days�you better quickly learn how to draft a will, apply for a trademark, and cross-examine a cop on the calibration of the Breathalyzer 2000. The truth: More and more clients are leaving biglaw to for smaller firms because of poor client service and bloated fees. And guess what? Lots of lawyers actually want time in a court room and before a jury - it's experience many so-called litigators at large firms don't have.
Getting PaidThis is the most hilarious of all. From the article: The same is true when you try to collect your own fees from your new clients. Sadly, your letterhead doesn�t scream, �I Am Part of a Firm of 1,000 Lawyers Who Will Hunt You Down Until You Pay.�" The truth: Hello? Ever heard of money up front? Evergreen retainers? Withdrawing if clients don't pay? Is this Cog-Author really a lawyer?
There are plenty of legitimate reasons to stay at a large firm. Maybe you're at a point in your life where you'd really be struggling without the money and fear that you'll risk your large salary if you leave. Maybe you've finally found a comfort spot after a bumpy ride through law school and other jobs. Maybe you truly enjoy working on complex pieces of a case with other people and don't mind the long hours. I don't denigrate the choices that biglaw attorneys make. But you've got to be honest with yourself - and that's something this article isn't. It's one big, sad and uninformed rationalization of why lawyers at large firms should suck up the downside of large firm life, to toil in obscurity and loan your talent for the rest of your life when you should be owning it instead.